Are Lashes Given When the Torah Provides a Corrective Action for a Transgression?

Provided courtesy of Real Clear Daf

As we learned this week on 13b, as a general rule, if the Torah provides a corrective action for a transgression, then lashes will not be incurred. The basis for this distinction is the fact that the Torah juxtaposes the sin of “Don’t muzzle your ox as it threshes,” with the punishment of lashes, indicating that only sins that are structurally similar to the sin of “Don’t muzzle..” are subject to lashes. Being that the Torah does not provide a corrective action for “Don’t muzzle..” we derive that any sin that does have a corrective action is not subject to lashes.

Later, on 15b, the Gemara (as explained by Rashi on 15a), the Gemara presents a fundamental dispute about this concept. Essentially, there are two ways to understand the relationship between lashes and a sin that includes a corrective action:

Understanding #1 : (R’ Yochanan) Transgressing a sin that has a corrective action does not incur lashes unless the transgressor goes to the extreme of proactively negating the possibility of ever doing the corrective action. For example, if one transgressed and improperly took a mother bird from upon her young, the transgressor would not incur lashes unless he took the further action of e.g. killing the mother bird, which would of course preclude ever being able to correct the sin by properly sending the mother bird away. So in other words, as long as the sinner did not ruin the possibility of utilizing the corrective action, lashes will not apply.

Understanding #2 : (Reish Lakish) Transgressing a sin that has a corrective action does incur lashes. But the transgressor has a one-time opportunity to avoid actually receiving lashes, i.e. if he immediately heeds the court’s order to take the corrective action. Taking the corrective action would be accepted in lieu of the lashes punishment. So in the above example, unless the person who improperly took the mother bird immediately listens to Beis Din and sends the mother bird away, he would receive lashes.

At the heart of this dispute is how we are to understand the function of a corrective action provided by the Torah. R’ Yochanan understands that basically the Torah said: we don’t consider the sin to have been completely transgressed unless the sinner cut off the ability to correct it. It’s almost as if the negation of the corrective action is part of the sin itself. Reish Lakish on the other hand argues that the sin was 100% violated as soon as the illegal action was taken; just that the corrective action has the power to exempt the lashes that were incurred by this sin.

The Gemara there then poses the question: What are R’ Yochanan and Reish Lakish arguing about? Now if our summary of the discussion (which is based on Rashi) is accurate, we would expect the Gemara to answer with we just laid out above: they’re arguing about the function of a sin’s corrective action. However, that is not what the Gemara answers. Instead the Gemara explains that the dispute here between R’ Yochanan and Reish Lakish boils down to an argument about a totally different issue: the legal status of a warning in a case where there’s an element of doubt. That is, it is well established that in order to carry out lashes, the transgressor must have been formally warned against committing the sin and informed of the punishment it would incur. But what if it’s not clear at the time of the warning whether the failure to heed the warning would actually constitute a sin? (Example: someone took an oath to eat bread by the end of the day. Any warning issued throughout the day would be doubtful since until the entire day passes, we can’t know whether his decision to ignore the warning at that moment would be sinful, for maybe he’ll eat the bread later.)

We’ll explain in a moment how this issue of a warning where there’s an element of doubt relates to our discussion, but first, a question: Rashi told us that Reish Lakish and R’ Yochanan are simply arguing about how a sin with a corrective action works. How then are we to understand the Gemara’s assertion that their dispute here really stems from this other issue about the technical rules of warnings?

Perhaps this is the answer: if you would ask Reish Lakish purely from the standpoint of logic, he would agree that R’ Yochanan’s position on how a sin with a corrective actions works makes more sense. For if the Torah built in a remedial action to undo the sin, then logic dictates that the person shouldn’t receive lashes as long as he has left the door open to rectifying the sin. But Reish Lakish was forced to not accept this understanding based on his opinion about the definition of a valid warning. Namely, Reish Lakish is of the opinion that if there’s an element of doubt, then the warning is invalid. Reish Lakish therefore cannot agree with the notion that a person isn’t considered to be in violation of a sin until he also ruins the possibility of correcting it, for if that were true, then lashes would never be possible in any case of a sin with a corrective action. For consider: when the person is warned, “don’t take that mother bird; if you do, you’ll be punished with lashes!” we have no idea whether or not his choice to ignore the warning will be a complete violation of the commandment. In fact the likelihood is that this won’t be a complete sin--as long as he doesn’t go and kill the motherbird! Therefore, Reish Lakish was compelled to explain differently: that really, as soon as the sin is committed it’s a 100% violation of the sin (thus removing the element of doubt). It’s only that if he decides to immediately take the corrective action, he can exempt himself from the lashes he incurred. A fascinating intersection of different Talmudic discussions.